Tansino Quarries Limited & Another vs Advent Construction Limited (Civil Application No. 1688 of 2025) [2025] TZCA 1229 (28 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA, J.A., FIKIRINI. J.A.. And MGEYEKWA. J.A.^ CIVIL APPLICATION NO. 1688 OF 2025 TANSINO QUARRIES LIMITED................................................l*t APPLICANT XYZ TRANSPORT LIMITED ...................................................... 2n d APPLICANT XIN XIN QUI alias RADHA QIU............................................... 3rd APPLICANT VERSUS ADVENT CONSTRUCTION LIMITED..........................................RESPONDENT (Application to Strike out the Civil Appeal No. 373 of 2023, arising from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Ndunauru. J.^ dated the 30th day of September, 2022 in Commercial Case No. 96 of 2020 RULING OF THE COURT 7th & 28th November, 2025 FIKIRINI. 3.A.: The present application arises from the Court order dated 25th July, 2025. The essence of that order was the stay of hearing and determination of Civil Appeal No. 737 of 2023, coupled with the grant of an adjournment to allow the intended application under Rule 89(2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") to be filed, heard i and determined. The Court directed that such an application be filed within thirty (30) days from the date of the order. Pursuant to Rules 89(2), 48(1) and (2), and 49(1) of the Rules, Civil Application No. 1688 of 2025 was duly lodged on 26th and fees were duly paid on 28th August, 2025. The substance of the application is that the Court is urged to strike out from its record the appeal filed on 7th December, 2023, on the following grounds: 1. The respondent failed to serve the Notice o f Appeal upon the applicants as required under Rule 84(1) o f the Rules. 2. Essential steps in the proceedings were not taken within the prescribed tim e, contrary to Rule 90(1) and (3) o f the Rules. 3. The respondent should bear costs. The application is supported by a joint affidavit of the applicants, deponed by learned advocate Fraterine L. Munale. The respondent did not file an affidavit in reply, thereby leaving the allegations in the application uncontested. In their joint affidavit, particularly at paragraphs 3, 4, 5, and 9, the applicants averred that (i) they had not been served with the Notice of Appeal to date, (ii) that the letter requesting certified copies of the requisite documents was served outside the prescribed time, (iii) that 2 the respondent failed to take the essential steps in prosecuting Civil Appeal No. 737 of 2023, which remains pending before the Court and (iv) the applicants asserted that the certificate of delay, issued on 6th December, 2023, was defective. The application was met with a notice of preliminary objection on a point of law (PO), lodged on 5th November, 2025, to the effect that: "The applicants'pending application > arising from C ivil Appeal No. 737 o f 2023, is in blatant contravention o f this Honourable Court's order issued on 25th July, 2025, between the same parties, is consequently tim e-barred, constitutes an abuse o f the due process o f this Honourable Court, and therefore ought to be struck out with costs." When the application was called on for hearing, Messrs. Roman Masumbuko and Jonathan Mbuga, learned advocates, appeared for the applicants and respondent respectively. Commencing the hearing of the PO, Mr. Mbuga, counsel for the respondent, submitted that the application was filed four (4) days out of time, calculating the period from 25th July, 2025 to 28th August, 2025. He emphasized that the Court's specific order must be strictly complied with, citing the cases of Rupesh Enterprises Limited v. Commissioner General, Tanzania Revenue Authority, Civil Application No. 66 of 2012 and Josephat Mwemezi Bakuza v. Winifrida Mkono & Another, Civil Appeal No. 17 of 2020 [2021] TZCA 706 (29 November 2021; TANZLII). He argued that Rule 8 of the Tanzania Court of Appeal Rules, 2009 (as amended) does not operate to extend time where there is a specific order of the Court. He further contended that, even if the application were deemed filed on 26th August, 2025, it would still be out of time, thereby depriving the Court of jurisdiction to entertain the matter. In reply, Mr. Masumbuko, contended that the proper computation of time under Rule 8 of the Rules excludes the day on which the order was delivered, namely 25th July, 2025. Counsel further noted that the following two days, 26th and 27th July, 2025, fell on a Saturday and Sunday respectively, which should be discounted pursuant to Rule 8 (c) and Rule 15 of the Rules, as non-working days at the commencement of the period. Accordingly, the thirty-day period began to run on 28th July, 2025, thereby rendering the filing of the application timely. In addition, reliance was placed on the Chief Justice's guidelines on electronic filing, 4 which recognize the date of uploading, that is 26th August, 2025, as the operative filing date. Mr. Masumbuko, further argued that the respondent had demonstrated no prejudice arising from the alleged delay. He submitted that striking out the application would merely result in its refiling, thereby prolonging the resolution of the substantive issues. Invoking the "Oxygen Principle" under Article 107A of the Constitution of the United Republic of Tanzania, 1977 (as amended), he urged the Court to prioritize substantive justice over procedural technicalities. In support, he cited Swahiba Ibrahim Shaha v. The Registered Trustees Masjid Quiblatain, Civil Reference No. 5 of 2021 [2023] TZCA 17343 (15 June 2023; TANZLII), emphasizing that the Court should focus on the merits rather than rigid adherence to time computations where no injustice is occasioned. In addition to the above cited case, in his additional list of authorities, Mr. Masumbuko invited the Court to focus objectively on the substance of the application before it, as was the case in Tanzania Heart Institute v. The Board of Trustees of N.S.S.F(Civil Application No. 109 of 2008) [2008] TZCA 29 (15 August 2008; TANZLII); Chama Cha Walimu Tanzania v. The Attorney General 5 (Civil Application No. 151 of 2008) [2008] TZCA 12 (11 November 2008; TANZLII), TPB Bank Pic (Successor in title of Tanzania Postal Bank) v. Rehema Alatunyamadza & Others (Civil Appel No. 155 of 2017) [2021] TZCA 46 (1 March 2021; TANZLII) and ACCESS Bank Tanzania Limited & Another v. Thobias John Mwacha (Civil Application No. 24 of 2023) [2024] TZCA 547 (11 July 2024; TANZLII). He accordingly prayed that the preliminary objection be overruled with costs and that the main application be allowed to proceed. Mr. Mbuga reiterated that the specific Court order overrides the general rules on computation of time, and weekends or public holidays do not extend the prescribed period unless the final day falls on such a date. He maintained that the Court cannot assume jurisdiction once the time granted has lapsed. The issue for determination is whether the applicants' application was filed out of time, thereby rendering it incompetent. It is trite law that time limits in judicial proceedings are designed to ensure expeditious justice and must be adhered to strictly, particularly where they emanate from a specific order of the Court. The starting point in this matter is the Court order of 25th July, 2025, which expressly granted thirty (30) days to file the application "from the date of the order." As regards the applicants' contention that, following delivery of the order, the subsequent days, 26th and 27th July, 2025, being Saturday and Sunday, warranted computation of time commencing on 28th July, 2025, the next working day when the Registry was open, is an argument devoid of merit. This is because non-working days in question occurred at the inception of the period rather than at its conclusion. Had the terminal date of the prescribed period (for instance, the thirtieth day) fallen on a Saturday, it might reasonably have been extended to the ensuing Monday as a working day. However, such an extension does not apply to the initial computation of time at the outset of the period. The applicants uploaded the application electronically on 26th August, 2025. Rule 21(1) of the Electronic Filing Rules, read together with sub-rule (3) of the Judicature and Application of Laws (Electronic Filing) (Amendment) Rules, 2025, provides that the date of uploading constitutes the filing date, provided that fees are paid promptly thereafter. On this basis, the applicants are still out of time by two days when computing the period from 25th July, 2025 to 26th August, 2025, the alleged filing date. 7 Mr. Masumbuko, sought to invoke the "Oxygen Principle" under Article 107A of the Constitution of the United Republic of Tanzania, 1977 (as amended), to excuse the delay. He argued that the delay was minimal, caused no prejudice, and that striking out the application would only delay resolution of the dispute. It is settled law that the overriding objective cannot be invoked to extend time or excuse non-compliance in matters where time is of the essence, such as adherence to specific court-ordered deadlines. While the principle seeks to promote substantial justice without undue technicality, it does not confer discretion to disregard statutory or court- imposed time limits that touch on the Court's jurisdiction. In cases concerning extensions of time or compliance with time-bound orders, strict observance is required to safeguard the order and finality in proceedings, as underscored in authorities including Rupesh Enterprises Limited and Josephat Mwemezi Bakuza (supra). While Swahiba Ibrahim Shaha (supra) underscores the need to focus on merits over curable procedural defects where no prejudice arises, it does not extend to overriding time limits set by court orders. Such limits are not mere technicalities but are foundational to jurisdictional competence. Applying the overriding objective in this 8 context would undermine the purpose of time prescriptions, potentially leading to indefinite delays and abuse of process. The delay, though minimal, is not excusable in the absence of a formal application for extension of time. The Court cannot suo m otu extend time under the guise of the "overriding objective principle". In Mondorosi Village Council & Others v. Tanzania Breweries Ltd & Others, Civil Appeal No. 66 of 2017 [2018] TZCA 303 (14 December 2018), the Court held:- "Regarding the overriding objective principle , we are o f the considered view that the same cannot be applied blindly against the m andatory provisions o f the procedural law, which go to the very foundation o f the case. This can be gleaned from the objects and reasons o f introducing the principle under section 3 o f the Appellate Jurisdiction A ct [CAP 141 R.E. 2002] as am ended by the W ritten Laws (M iscellaneous Amendments) (No. 3) A ct No. 8 o f 2018, which enjoins the courts to do away with technicalities and instead, should determ ine cases ju stly. According to the B ill to the am ending Act, it was said thus: 'The proposed amendments are not designed to blindly disregard the rules o f procedure that are couched in m andatory term s.... 9 Accordingly, the respondent's contention that the Court lacks jurisdiction due to lapse of time is well-founded. Once the prescribed period expires without compliance, the application becomes incompetent, and the Court is divested of authority to entertain it on the merits. In light of the foregoing, the preliminary objection is meritorious and is sustained. Consequently, the application is struck out with costs. DATED at DAR ES SALAAM this 27th day of November, 202 G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Ruling delivered this 28th day of November, 2025 Court in the presence of Mr. Zefania Chowe, learned counsel for the Appellant, Mr. Hance Mrindoko, learned Counsel for the Respondent and Ms. Janekisa Bukuku, Court Clerk is hereby certifie^-aTatrue^copy of the original.